TANGILAustralian National University v Minister for Immigration

[2016] FCCA 815

FEDERAL CIRCUIT COURT OF AUSTRALIA

TANGILANU v MINISTER FOR IMMIGRATION [2016] FCCA 815

Catchwords:
MIGRATION – Show cause hearing – no arguable case – application for judicial review dismissed pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001.

Legislation:

Migration Act 1958 (Cth), ss.66, 338, 347, 476, 477, 494B, 494C

Federal Circuit Court Rules 2001 (Cth), r.44.12
Migration Regulations 1994 (Cth), reg.2.16, 4.10

Applicant: ALUNGAMONU TANGILANU

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: MLG 1419 of 2015

Judgment of: Judge Jones

Hearing date: 21 March 2016

Date of Last Submission: 21 March 2016

Delivered at: Melbourne

Delivered on: 21 March 2016

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondent: Mr Hibbard

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application for judicial review filed on 23 June 2015 be dismissed. 

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,416. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1419 of 2015

ALUNGAMONU TANGILANU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (“the Rules”) in relation to an application for judicial review made by the Applicant on 23 June 2015, of a decision of a delegate of the First Respondent made on 22 January 2015, to refuse to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (subclass 461) visa.

2. Pursuant to r.44.12 of the Rules, the Court may dismiss the Applicant’s application for judicial review, if it is satisfied that the application does not raise an arguable case. Furthermore, the Applicant is confined to the grounds of review specified in their application.

3. It is relevant to note that, although the Applicant has applied for judicial review of the decision of the delegate of the Minister for Immigration and Border Protection (“the delegate”), the Applicant applied to the then Migration Review Tribunal (“the Tribunal”) on 18 March 2015 for a review of the delegate’s decision. This application was dismissed pursuant to s.347(1)(b) of the Migration Act 1958 (“the Act”) and reg.4.10 of the Migration Regulations 1994 (“the Regulations”) which required her to make an application for merits review within a prescribed time period. 

4. The Tribunal decision record, a copy of which is attached to the Applicant’s written submissions, informed her that the Tribunal did not have jurisdiction in the matter. I should note here that the Tribunal does not have discretion to extend the time in which an application for merits review can be made. This is to be contrasted with this Court, where the Court does have, pursuant to s.477(2) of the Act, a discretion to extend the time within which an application can be made.

5. The Applicant, as will be shortly apparent, raises the issue of when she received a copy of the delegate’s decision, which impacts on the time within which she was required to make her application for review.  I will deal with that in due course. 

6. Turning firstly, however, to the Applicant’s application for judicial review. This was filed by the Applicant on 23 June 2015 (CB 96). In her application, she indicates that the decision in respect of which she seeks judicial review by this Court, is a decision made on 22 January 2015 (CB 97) by the decision-maker, Andrew Brown, whom the Applicant confirmed was indeed a delegate of the Minister.

7. The final orders sought by the applicant are specified in her written submissions (CB 98):

   New Zealand family relationship visa centre order be quashed.  The decision of my declined application.

8. Under the heading ‘Grounds of Application’, she specified these as (CB 98):

   Jurisdiction Error by the case officer:  Failed to fully consider my application and unfairly declined my application. Failed to follow my question regarding my application in a timely manner.  Declined me with one about my visa without the right to be hurt [sic}. Failed to consider the severe pain of myself and my whole family over his declined decision.

   – Processing Error.

9. In her affidavit, the Applicant deposes (CB 102):

   What I declare for my declined visa jurisdiction error is all true.

10. She has attached to her affidavit a copy of the delegate’s decision (CB 104-107).

11. The Applicant has, in addition to these documents, also filed her written submissions on 15 March 2016. She has attached various documents to her written submissions, including a copy of the Tribunal decision, and she notes various matters which she has referred to in her oral submissions. 

12. I should say, having read her written submissions, that they focus on her grievances with the conduct of the delegate in dealing with her application, her particular circumstances and her grievances regarding the Tribunal failing to notify her of its decision made on 16 April 2015, until 19 June 2015. She also includes correspondence to the Minister regarding what she claims as exceptional circumstances, in relation to her and her family.

13. The matters that are raised by the Applicant’s judicial review are twofold.  Firstly, whether the Court has jurisdiction to deal with her application for judicial review. 

14. Secondly, the question of notification provisions that applied in relation to the delegate sending the decision to the Applicant, and when she is taken, pursuant to the legislation, to have received that decision. This is relevant because the Applicant has complained that, although the decision of the delegate was made on 22 January 2015, she did not receive it until 22 February 2015 by email.

15. In one sense, it is unnecessary to deal with the notification provisions once I deal with the Court’s jurisdiction, however, because the Applicant is self-represented, I have decided to include in my decision an explanation for her about the application of the notification provisions. As the Applicant is self-represented, I asked the Minister’s representative, Mr Hibbard of counsel, to address in his oral submissions the jurisdictional point, which was dealt with in the Minister’s written submissions, which were filed on 7 March 2016, as well as the notification provisions.

16. I have to say that the provisions are complex to a self-represented person, but Mr Hibbard has, in my view, explained the operation of the jurisdiction – the provisions relating to the Court’s jurisdiction and the notification provisions – in a way that is, to the extent possible, understandable for a self-represented person.

17. I should say that I did explain to the Applicant that the Court can only act within the jurisdiction that is given to it by statute. I also informed her that she could either rely completely on her written submissions, which I had read including annexures, or she could make supplementary oral submissions. 

18. The Applicant took the opportunity to make supplementary oral submissions, and the first thing raised, which I’ve already indicated, is that whilst the delegate’s decision was on 22 January 2015 she, in fact, did not receive that decision until 22 February 2015. She said that she was only sent the decision again by email because she had taken steps to inquire with the Minister’s case officer or delegate, as to what was happening with her case.

19. She said, however, that the main issue that she raised in this judicial review, and this is reflected in her application and her affidavit, is what she sees as a jurisdictional error of the delegate’s decision. She explained her circumstances when her application was made, and that her husband was in New Zealand for emergency family reasons. She referred to the guidelines and her statutory declaration, and referred to what she said was a series of notification errors made by the Department of Immigration and Border Protection that seemed, from her point of view, to have been reflected later in the notification of the decision by the Tribunal.

20. I turn, firstly, to consider the question of the Court’s jurisdiction and – which was, as I have already indicated, dealt with by the Minister in the written submissions commencing at paragraph 3 and, again, orally at my request for the benefit of the Applicant, who is self-represented. Section 476 of the Act provides that:

    (1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

    (2) The Federal Circuit Court has no jurisdiction in relation to the following decisions: 

    (a) a primary decision;

    ...

21. Section 476(4) of the Act defines a primary decision:

    … primary decision means a privative clause decision or purported privative clause decision:

    (a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or

    (b) that would have been so reviewable if an application for such review had been made within a specified period; …

    …

22. Part 5 of the Act is the relevant part, given that in this case, the Applicant is not seeking a protection visa or a visa for humanitarian reasons. Section 338 of the Act is the relevant provision. It provides:

    (2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is a Part 5 - reviewable decision if: 

    (a)the visa could be granted while the non-citizen is in the migration zone;  and

    (b)the non-citizen made the application for the visa while in the migration zone;  and

    (c)the decision was not made  when the non-citizen: 

    (i)was in immigration clearance.

    …

23. The Applicant’s circumstances fall within sub-ss.338(a), (b) and (c)(i) of the Act. Accordingly, the decision of the delegate was an MRT reviewable decision. The consequence of this, is that the delegate’s decision was a primary decision within the meaning of s.476(2)(a) of the Act, and the Court has no jurisdiction to deal with the Applicant’s application pursuant to s.476(2). In the usual course, this ends the matter for the Applicant.

24. However, as I indicated, because she has raised an issue about the notification, or the delay in the notification, she asserts, by the delegate to her, I have considered it appropriate, simply for her benefit, to go through the notification provisions as part of this decision, because the Applicant has various grievances with the way in which the delegate managed her case.

25. The Minister has helpfully provided a copy of various relevant sections of the Act and a copy of the Regulations and, at my request, has gone through those notification provisions. A copy of a bundle of these extracts from the Act and the Regulations was provided to the Applicant. The starting point is s.66(1) of the Act, which provides that:

    When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.

26. Regulation 2.16(1) of the Regulations provides:

    For subsections 66(1) and 501G(3) of the Act (which deal with giving notice of decisions), this regulation sets out the way of notifying a person of a decision to grant or refuse to grant a visa.

27. The following subsections deal with the various means by which the Minister or the delegate of the Minister can notify a person of a decision. Sub-regulation 2.16(2D) of the Regulations is the relevant provision. It states:

    If none of the subregulations (2) to (2C) applies –

    (and they do not in this case –)

    the Minister must notify the applicant of the grant of the visa by: (a) telling the applicant orally that the visa has been granted; or (b) notifying the applicant by one of the methods specified in section 494B of the Act.

28. Turning to s.494B of the Act - ‘Methods by which the Minister gives Documents to a Person’. The relevant subsection is s.494B(5) of the Act, ‘Transmission by fax, email or other electronic means’: 

    Another method consists of the Minister transmitting the document by:

    …

    (b) email;

    …

    to:

    (d) The last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents.

29. Now, in the course of explaining to the Applicant the nature of these proceedings, I did have cause to take her to her application for the visa and, in particular, to question 12 (CB 2), which asks:

    Do you agree to the department communicating with you by fax, email or other electronic means?

30. She ticked the box “yes” and she gave an email address, which I confirmed with her, was the same email address which was set out in the delegate’s correspondence to the Applicant notifying her of the refusal to grant her the visa. 

31. Turning to the delegate’s correspondence notifying her of the refusal to grant the visa (CB 104), on the left-hand side after the date of the decision, 22 January 2015, her address and various details, there is a reference to “Transmission Method”. On the right-hand side, it states “Email sent to”, and the Applicant has confirmed that this was her email address, and it certainly corresponds to the email address that she notified the Department that they could communicate with her in her visa application. The consequence of this, is that the method that the Applicant chose for the Minister to notify her, was by email address.

32. Section 494C of the Act is now the relevant section, and it deals with when a person is taken to have received a document from the Minister.

33. I explained to the Applicant, that pursuant to this section, where the Minister sends a document in accordance with that section, then whatever happens on her end – in her case, she said she didn’t receive the email – the effect of the statutory provisions is that she is taken to have received it. 

34. So the relevant part of is sub-s.494C(5) of the Act, which states:

    If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

35. I did indicate to the Applicant that this sometimes has, what seems to be, an unfair or arbitrary effect, but that is the way the legislation applies. So in the case of the Applicant, the decision of the delegate, having been transmitted electronically by email to her last email address on the Department’s records, which was the email address which she set out in her application for the visa, the Applicant is taken to have received that decision on 22 January 2015, no matter what else the Applicant says. 

36. The consequence for her – and I know that she is quite aware of it – is that her application to the Tribunal was out of time, and that is why the Tribunal said that it did not have jurisdiction. I must emphasise again for the Applicant, that it was unnecessary for the Court to deal with this, because the first and only point in this case is that the Court does not have jurisdiction to deal with the primary decision, and the delegate’s decision was the primary decision for the reasons that I went through.

37. Consequently, the only Order that I can make is that I dismiss the Applicant’s application with costs. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date:  12 April 2016